RAFIU OGBE v. JIMOH ADUN ADEGBE & ANOR
(2013)LCN/6617(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of December, 2013
CA/I/160/2004
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
O. DANIEL- KALIO Justice of The Court of Appeal of Nigeria
Between
RAFIU OGBE Appellant(s)
AND
1. JIMOH ADUN ADEGBE
2. BILIAMINU ADEGBE Respondent(s)
RATIO
WHETHER OR NOT AN INCOMPETENT NOTICE OF APPEAL WITHOUT THE SIGNATURE OF A COUNSEL CAN BE VALIDLY AMENDED
The question that has arisen now is, can the incompetent Notice of Appeal, Exhibit ‘1’ without the signature of counsel be validly amended?
Sections 2(1) and 24 of the Legal Practitioners Act provide as follows:
2(1) “Subject to the provisions of this Act, a person shall be entitled to practice as a Barrister and Solicitor if, and only if, his name is on the roll…..
24. “Legal Practitioner” means a person entitled in accordance with the provisions of this Act to practice as a Barrister or as a Barrister and Solicitor, either generally or for the purposes of any particular office or proceedings.”
It is now settled law that any court process issued in the name of a firm and not in the name of a Legal Practitioner, it is a fundamental vice, such a process is incompetent, invalid, null and void. See, the case of OKAFOR VS. NWEKE (2007) 10 NWLR (Pt. 1043) 521. PER UWA, J.C.A.
THE EFFECT OF AN INCOMPETENT ORIGINAL NOTICE OF APPEAL
The effect of the incompetent original Notice of Appeal is that it is null and void, it is non-existent, invalid. Is it then possible to amend something that is non-existent, null and void? In this regard in a recent decision of the Apex Court His Lordship Onnoghen, ISC in the case of NIGERIAN ARMY VS. SAMUEL and 3 ORS. (2013) 14 NWLR (Pt. 1375) P.466 at P. 483 PARAS G-H held thus:
“The lack of Legal personality is a fundamental defect which cannot be cured even by an amendment. It is a defect that goes to the root of the proceedings and renders same void ab initio. In the eyes of the law, the Notice of Appeal in this case did not exist and can therefore not be accorded validity by an amendment. What is void is void.”
At page 485 His Lordship, Rhodes Vivour, JSC re-emphasised his view in this regard in SLB CONSORTIUM VS. NNPC (2011) 4 SCJ P. 211, (2011) 9 NWLR (Pt.1252) 317 at P.337 – 338; PARAS H – A on how processes to be filed in court are to be signed in an elementary and simple terms. He said:
“First: the signature of counsel, which may be any contraption.
Second: the name of counsel clearly written.
Third: who counsel represents.
Fourthly: name and address of Legal firm.”
The effect of Section’s S.2(1) and 24 of the Legal Practitioners Act is that only lawyers using their professional name can practice law in Nigeria, thus sign their processes. A firm’s name is not the name of counsel.
At page 486 of the same judgment His Lordship Ogunbiyi, JSC held thus: concerning amendment of an incompetent Notice of Appeal.
“The original Notice of appeal as the initiating process must be competent for any subsequent amendment to sustain. To hold otherwise and ‘ as contended by the respondent’s counsel is to put something on nothing and which would surely crumble. The amendment has no foundation to stand there on.”
Similarly, His Lordship, Akahhs, JSC held that:
“The originating i.e. the Notice of Appeal (which was purportedly amended)……………
was fundamentally defective which could not be cured by an amendment.”
On the issue of amendment of an incompetent Notice of Appeal, in the case of OKOLI VS. AJOSE (1994) 8 NWLR (Pt. 362) P.300, it was held by Uwaifo, JCA (as he then was) thus:
“Once the original or the first Notice of Appeal is not validly filed, it is incompetent and there is nothing to amend. Therefore, an incompetent Notice of Appeal cannot be amended.”
See, also ERISI VS. IDIKA (No.1) (1987) 4 NWLR (Pt. 66) 50. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Lead Ruling): This application was brought pursuant to Order 6 Rules 6 and 15, Order 7 Rule 1 and Order 20 Rules 2, 3 and 5 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of the court, seeking the following Orders:
(a) “Setting aside the Order of this Honourable Court dated 12th February, 2013 striking out the Amended Notice of Appeal dated 15th October, 2007.
(b) Relisting the Appeal of the Appellant against the judgment of the High Court of Ogun State Coram B.A. Oguntesi Adio J delivered on 16th February, 2000 for hearing.
AND FOR SUCH FURTHER or other Orders as this Honourable Court may deem fit to make in the circumstances.
GROUNDS FOR THE APPLICATION.
1. “On 12th February, 2013, this Honourable Court struck out the original Notice of Appeal dated 23rd February, 2000 because it was improperly signed by former counsel to the Appellant.
2. On the same day, this Honourable Court also struck out the Amended Notice of Appeal dated 15th October, 2007 because it was predicated on the faulty and incompetent original Notice of Appeal.
3. The Appellant’s counsel had prepared an application for extension of time to Appeal in order to begin the process all over again when his attention was drawn to a most recent decision of the Supreme Court in UNITY BANK PLC. VS. DENCLAG LIMITED & ANOR. (2012) 18 NWLR PART 1322 PAGE 293.
4. The said Supreme Court decision held that once an incompetently signed Notice of Appeal is amended by leave of court and replaced with a properly signed Amended Notice of Appeal, the process is redeemed and is consequently valid.
5. It will be in the interest of Justice to grant the Appellant’s application particularly as there are exceptional circumstances to justify the Order sought.”
When this application was argued, the learned senior counsel J.A. Badejo (SAN) appearing with F.D. Oloruntoba Esq. for the applicant relied on a twelve (12) paragraph affidavit deposed to by one David Otunla, a legal practitioner in the firm of Bonajo Badejo & Co., solicitors retained by the applicant. Reliance was placed on all the paragraphs as well as Exhibits ‘1’, ‘2’, and ‘3’ attached thereto. Exhibit ‘1’ is the original Notice of Appeal filed on 23/2/2000; while Exhibit ‘2’ is the Order of this court amending Exhibit ‘1’, granted on 15/10/2007. Exhibit ‘3’ is the Amended Notice of Appeal filed consequent upon the grant of the Order of this court. Exhibit ‘1’ was “signed” by a firm. While Exhibit ‘3,’ was signed by B.A. Badejo. These facts were submitted not to be in dispute. Amongst the Orders granted in Exhibit ‘2’, is leave to appeal against two interlocutory Rulings as shown. The Notice of Appeal was amended to reflect the new grounds of Appeal, following which the Notice of Appeal was comprehensively amended, that is Exhibit ‘3’, which was signed by B.A. Badejo.
It was submitted that the amendment cured the defect in the original Notice in the circumstances of this case, for the reason that there are fresh interlocutory appeals embodied in that amendment.
It was argued that the amendment was granted comprehensively knowing the defect in the original Notice. It was also submitted that the application was brought within reasonable time as provided in Order 20 Rule 5 of the Rules of this Court. We were urged to rely on the case of UNITY BANK PLC. VS. DENCLAG LTD and ANOR. (2012) 18 NWLR (Pt. 1332) P.293 particularly P.327. We were urged to hold that the above case is on all fours with the present case.
The learned senior counsel acknowledged that this court drew his attention to the subsequent decision in F.B.N. VS. MAIWADA (2013) 5 NWLR (Pt. 1348) P.444, but submitted that his case could be distinguished because in his case there was an amendment that cured the defect while in Maiwada’s case there was no amendment even though sought, it was not granted. The learned senior counsel submitted that he is aware that this court must follow later decisions but would only do so if the facts and circumstances are the same. We were urged to look at the justice of the case and distinguish this case from Maiwada’s case. We were urged to grant the application.
The respondents were served with the hearing Notice and the application on 2/9/2013 but failed to attend court. It is taken that they had nothing to urge the court not also having filed any counter affidavit in opposition.
I would determine the application based on the processes filed by the applicant only.
It is not disputed by the learned senior counsel that the original Notice of Appeal filed on 23/2/2000 was incompetent because it was not signed by counsel to the appellant, that is Exhibit ‘1’. The learned senior counsel has argued that the incompetent Notice of Appeal was struck out as well as the Amended Notice of Appeal dated 15th October, 2007 properly signed by counsel, amended with the leave of court on 15th October, 2007. The question that has arisen now is, can the incompetent Notice of Appeal, Exhibit ‘1’ without the signature of counsel be validly amended?
Sections 2(1) and 24 of the Legal Practitioners Act provide as follows:
2(1) “Subject to the provisions of this Act, a person shall be entitled to practice as a Barrister and Solicitor if, and only if, his name is on the roll…..
24. “Legal Practitioner” means a person entitled in accordance with the provisions of this Act to practice as a Barrister or as a Barrister and Solicitor, either generally or for the purposes of any particular office or proceedings.”
It is now settled law that any court process issued in the name of a firm and not in the name of a Legal Practitioner, it is a fundamental vice, such a process is incompetent, invalid, null and void. See, the case of OKAFOR VS. NWEKE (2007) 10 NWLR (Pt. 1043) 521. The learned senior counsel in the present case argued that Exhibit ‘2’ amended Exhibit ‘1’, the original Notice, thus giving rise to Exhibit ‘3’, the purported Amended Notice of Appeal which was struck out by this court on 12th February, 2013 which the applicant has now sought to be set aside and relisting of the Appeal. The effect of the incompetent original Notice of Appeal is that it is null and void, it is non-existent, invalid. Is it then possible to amend something that is non-existent, null and void? In this regard in a recent decision of the Apex Court His Lordship Onnoghen, ISC in the case of NIGERIAN ARMY VS. SAMUEL and 3 ORS. (2013) 14 NWLR (Pt. 1375) P.466 at P. 483 PARAS G-H held thus:
“The lack of Legal personality is a fundamental defect which cannot be cured even by an amendment. It is a defect that goes to the root of the proceedings and renders same void ab initio. In the eyes of the law, the Notice of Appeal in this case did not exist and can therefore not be accorded validity by an amendment. What is void is void.”
At page 485 His Lordship, Rhodes Vivour, JSC re-emphasised his view in this regard in SLB CONSORTIUM VS. NNPC (2011) 4 SCJ P. 211, (2011) 9 NWLR (Pt.1252) 317 at P.337 – 338; PARAS H – A on how processes to be filed in court are to be signed in an elementary and simple terms. He said:
“First: the signature of counsel, which may be any contraption.
Second: the name of counsel clearly written.
Third: who counsel represents.
Fourthly: name and address of Legal firm.”
The effect of Section’s S.2(1) and 24 of the Legal Practitioners Act is that only lawyers using their professional name can practice law in Nigeria, thus sign their processes. A firm’s name is not the name of counsel.
At page 486 of the same judgment His Lordship Ogunbiyi, JSC held thus: concerning amendment of an incompetent Notice of Appeal.
“The original Notice of appeal as the initiating process must be competent for any subsequent amendment to sustain. To hold otherwise and ‘ as contended by the respondent’s counsel is to put something on nothing and which would surely crumble. The amendment has no foundation to stand there on.”
Similarly, His Lordship, Akahhs, JSC held that:
“The originating i.e. the Notice of Appeal (which was purportedly amended)……………
was fundamentally defective which could not be cured by an amendment.”
On the issue of amendment of an incompetent Notice of Appeal, in the case of OKOLI VS. AJOSE (1994) 8 NWLR (Pt. 362) P.300, it was held by Uwaifo, JCA (as he then was) thus:
“Once the original or the first Notice of Appeal is not validly filed, it is incompetent and there is nothing to amend. Therefore, an incompetent Notice of Appeal cannot be amended.”
See, also ERISI VS. IDIKA (No.1) (1987) 4 NWLR (Pt. 66) 50.
It has succinctly been made clear that an amendment cannot cure a defective Notice of Appeal. The court lacked the jurisdiction to amend a purported notice that was, so as to say non-existent.
We have been urged to rely on the case of UNITY BANK VS. DENCLAG LIMITED & ANOR. (SUPRA). In my humble opinion, the above decision did reverse OKAFOR VS. NWEKE (supra) and I would rather rely on SAMUEL’S case (supra) which is a much more recent decision to which I am bound to follow. See, also BRAITHWAITE VS. SKYE BANK PLC. (2013) 5 NWLR (Pt. 1346) P.1 and F.B.N PLC VS. MAIWADA (2013) 5 NWLR (Pt.1348) P.444.
With the present state of the law, the original Notice of Appeal that was struck out with the purported Amended Notice of Appeal on 12/2/13, both remain incompetent, the order striking the Notice out cannot be set aside and the Appeal cannot be relisted based on the incompetent Notices. This court would be acting without jurisdiction if the struck out appeal is restored as it would be done without jurisdiction.
In sum, the application is without merit, same is hereby dismissed.
I award no costs.
HARUNA SIMON TSAMMANI, J.C.A.: I had a preview of the Ruling just delivered by my learned brother, C. N. Uwa, JCA. I agree that the application before us is without merit. It is hereby dismissed by me.
I abide by the order on costs.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the ruling just delivered, by my Lord Chidi Nwaoma Uwa J.C.A. and I entirely agree with it. I wish only to make a contribution of a general nature.
While Learned Counsel cannot be hamstrung with regard to applications to be made before courts, I think there is some wisdom in Counsel asking themselves some searching questions before they proceed to file applications. Questions such as: Will this application delay the speedy hearing of the case? Is it on a fundamental or a recondite point of law? If the answers to such questions are in the negative, then in my humble view, it may not be worth the trouble to pursue the application. An application that led to an interlocutory decision of a High Court in Aba for example, turned out to take 8 years to be finally settled at the supreme court, thereby setting the case back by that number of years! That was in the case of International Agricultural Industries (Nigeria) Ltd. & Anor. vs. Chika Brothers Ltd. See (1990) 1 NWLR Part 124 P.70 at 80 – 81.
I think that instead of proceeding with the application before us to set aside our order striking out the Amended Notice of Appeal which was predicated on an incompetent original Notice of Appeal, Counsel should have stuck to his first decision which was to seek an extension of time to appeal. The case of Unity Bank Plc. vs. Denclag Ltd. & Anor. (2012) 18 NWLR part 1322 p.293, which informed the change of mind in my humble view gave no lifeline that would have necessitated the application. In that case His Lordship Chukwuma -Eneh JSC stated that he was aware that a full court of the Supreme Court had been empanelled to revisit the decision in Okafor vs. Nweke in two prospective appeals. His Lordship then went on to state as follows:-
“It has to be noted that this court has inherent power to differ from its earlier decision where the ‘said decision has been reached per incuriam which is not the grievance of the dispute in this matter. However until the judgment of the full court in the said suits is delivered, it is my view that the decision in Okafor vs. Nweke, a binding authority on this court, still subsists and holds sway”.
See Unity Bank Plc. vs. Denclag Ltd. & Anor. (2012) LPELR – 9729 (SC) at p.63
It seems to me therefore that in view of the above clear statement of the Supreme Court, it should have been plain to learned counsel that the chances of the success of the application was as slim as the chances of the survival of a snowball in the heat of the Sahara Desert. He should have applied for extension of time to appeal.
I was minded to award costs against the applicant but I will follow the lead of my lord Chidi Nwaoma Uwa JCA and will refrain from doing so.
Appearances
J. A. Badejo (SAN) with F.D. Oloruntoba Esq.For Appellant
AND
Respondent served but absentFor Respondent
